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Reporting Order Insufficient to Stop Canada from Discriminating against First Nations Children

Tuesday, July 19, 2016

This is cross-posted from the View Point column from the May/June 2016 issue of the Human Rights Digest, with permission.

Anne Levesque

On January 26, 2016, the Canadian Human
Rights Tribunal (“CHRT”) released a historic decision (‘’decision’’) finding
that Canada is racially discriminating against over 163,000 First Nations
children and their families by providing flawed and inequitable child welfare
services ("FNCFS Program") and by failing to implement Jordan's
Principle to ensure equitable access to government services available to other children.1
In a subsequent order issued on April 26, 2016, the CHRT commented on Canada’s
failure to take sufficient immediate action to comply with its January
decision. It wrote: “[i]t is unclear why and how some of the findings [of discrimination] have not been addressed within the
three months since the [January] decision. Instead of being immediate relief, some of these items
may now become mid-term relief”.2

In response to this inaction, the CHRT
ordered Canada to confirm that it had fully implemented Jordan’s Principle and
to report on the steps it had taken to comply with its January decision. Such
reporting orders are exceptional and are generally issued only in cases where
the failure to promptly comply with an order may cause irreparable harm,
particularly to a vulnerable group, as was the case in Doucet-Boudreau.3
Similarly, in Caring Society (No.
15), the CHRT heard and accepted evidence that Canada’s discriminatory
FNCFS Program was causing First Nations children to be removed from their families
and communities and put into care at alarming rates.4 It ordered
Canada to immediately cease its discriminating conduct towards against First
Nations children in accordance with its ruling.5

It is disappointing that in the face of
these tragic circumstances and such an exceptional legal measure, Canada failed
to take the immediate action necessary to lessen the discrimination experienced
by First Nations children receiving child welfare services following the CHRT’s
April reporting order. By way of example, the 2016 Budget allocates $71.1
million to First Nations child welfare services in 2016–2017, only $60.38 million of which will be
directed to service delivery for children and families. By contrast, Canada’s
own internal documents estimated that a minimum of $108.1 million plus an
annual 3 percent increase for inflation was required (in 2012 dollars) to
provide First Nations children with child welfare services comparable to those
available off reserve. The largest
funding allocation in the 2016 Budget for child welfare services for First
Nations children will not be conferred until 2020–2021 and that depends on whether the current government gets
re-elected. When asked why First Nations children needed to wait five years —
or a quarter of their childhood — to receive services comparable to those
available to others, Prime Minister Trudeau stated that the government needed
to “create the capacity” before providing additional funds to FNCFS agencies.6
Yet, none of the evidence presented before the Tribunal supports the Prime
Minister’s claim that First Nations agencies do not have the capacity to
deliver equal services to First Nations children. From a human rights
perspective, the claim, which is akin to stating that discrimination against
certain groups is acceptable because they are not, in the eyes of the party
responsible for the discrimination or the public, ready for equality, is also
very problematic.

Canada’s inaction
with respect to the implementation of Jordan’s Principle is equally disconcerting.
In its May 10, 2016, compliance report to the CHRT, Canada claimed that it had
fully implemented Jordan’s Principle. Yet, Canada has failed to take the
measures necessary to ensure that First Nations children not longer experience
discrimination as a result of jurisdictional disputes. For
example, the INAC website directs the public to contact a series of telephone
numbers for Indigenous and Northern Affairs Canada (“INAC”) regarding Jordan’s
Principle cases. The Caring Society called each number to test the
accessibility of INAC’s Jordan’s Principle reporting system. Results revealed
out of service telephone numbers, automated answering machines that did not
include a Jordan’s Principle option and government officials who were not aware of
Jordan’s Principle or referred the caller to a First Nations organization. Only
one INAC office was able to send contact information for officials several
hours after the original call.7
The results of the calls were immediately brought to INAC’s attention
and the Caring Society sought confirmation from INAC that the matter has been
addressed but no response has been received. This raises significant concerns
regarding Canada’s compliance with the CHRT January order. More importantly, it
suggests that First Nations children will continue to experience discrimination
when seeking access to government services, or simply be denied those services
altogether.8 This is not surprising given that the CHRT
found that jurisdictional disputes caused First Nations children to be denied
services available to other children due to poor or complete lack of
coordination between and within governments. Such ongoing systemic and
widespread discrimination cannot be remedied simply by making grandiose
statements.

On June 14, 2016, faced with this
continued inaction, and upon receipt of Canada’s compliance report regarding
the CHRT’s findings of discrimination relating to its FNCFS Program, the CHRT
cancelled an upcoming case conference it had scheduled with the parties to
discuss the implementation of the January decision. In particular, it wrote:

The Panel finds there are far more
unresolved issues to deal with th[a]n it had expected and is now questioning
the benefit of having a meeting at this time. Therefore, the Panel proposes to
use its limited resources to address as many of the outstanding issues as it
can now.9

The CHRT is expected to rule upon the
Caring Society’s requests for immediate relief later this year. It is
unfortunate that such requests are even necessary and that Canada remains
unwilling to comply voluntarily with the CHRT’s decision by ceasing its
discriminatory conduct towards some of the most vulnerable members of our
society, First Nations children.

Anne
Levesque, B.A., LL.B., MSt (Oxon)
is proud to have been one of the lawyers who represented the
First Nations Child and Family Caring
Society of Canada in this case.

___________________

1. First Nations Child and Family Caring
Society of Canada v. Canada (Attorney General) (No. 15), 2016 CHRT 2, CHRR
Doc. 16-3003 (“Caring Society (No. 15)”).
When there is a dispute as to which level of government must fund a particular
service, Jordan’s Principle states that the service must be immediately
provided by the government that is contacted first, and that jurisdictional issues
must be sorted out later. For more information on Jordan’s Principle, visit
https://fncaringsociety.com/jordans-principle.

3. In Doucet-Boudreau v. Nova Scotia (Minister of
Education), [2003] 3 S.C.R. 3 (“Doucet-Boudreau”),
the Supreme Court of Canada upheld an order of a trial judge from Nova Scotia
in a language rights case to retain
jurisdiction to hear reports on the status of the effort of the province to
provide adequate school facilities and programs for Francophones. In so doing, the Supreme Court
noted that for every school year that governments do not meet their obligations
under s. 23 of the Canadian Charter of
Rights and Freedoms, there was an increased likelihood of assimilation
which carries the risk that numbers might cease to “warrant”, and thus
extinguishing the right to school instruction in a official minority
language.

7. For more
information about the calls, see APTN story which aired on June 21, 2016,
available at http://aptn.ca/news/2016/06/21/indigenous-affairs-help-lines-dont-work-advocates-say/.

8. On June 7, 2016, the Caring Society contacted the regional
offices and numbers on the website and asked to speak to the person in charge
of Jordan’s Principle cases noting that the INAC website says that persons with
questions regarding Jordan’s Principle should call the regional INAC office.
The object of the exercise was to ensure members of the public with Jordan’s
Principle cases were able to bring them to INAC’s attention and have them
addressed. The Caring Society contacted the 1-800 number listed under the
Atlantic, Quebec and Manitoba Regions and the person receiving the call advised
that they did not have a contact person and that they would send out a general
email. The number listed for Quebec Region (1-800-263-5592) yielded a
completely automated system with five options to leave messages about specific
topics. None of the topics included Jordan’s Principle inquiries. The number
listed for the Atlantic Region appeared to be out of order as multiple calls
yielded only a tone at the end of the line. Calls to the remaining regional
offices of Ontario, Saskatchewan, Alberta, and the Yukon revealed polite
responses from staff but did not yield a person to speak to about the cases.
The Caring Society received responses ranging from options only to leave
messages on voice mail to staff saying they did not know what Jordan’s
Principle was, to being referred to the First Nations Health Authority (in BC)
and suggesting they leave a message for a person who would not be back in the
office for several days. Ontario region did contact the Caring Society several
hours after our call with the names and addresses of persons to reach.